linguistic and cultural barriers to justice: comparing the responses of the japanese and malaysian...
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Linguistic and cultural barriers to justice: comparing the responses of the Japanese and Malaysian legal systems to the challenges of
globalisation. Richard Powell Nihon University
OUTLINE (2)
Outline, Aims & Methods Globalisation of law and implications for language and
culture
Historical and sociolinguistic contexts of Japanese and Malaysian law
Provisions for eliminating linguistic barriers to justice
Challenges of police and courtroom interpreting
Cultural barriers to justice
1. AIMS & METHODS (3)
To show how linguistic and cultural barriers are intertwined in legal systems
-translation services need to be backed by law-specific training
& intercultural awareness Documentary review -constitution, statutes; relevant websites e.g. Japanese & Malaysian court homepages Interviews with legal practitioners and interpreters
Courtroom observations
Interviews with foreign suspects & defendants [not yet conducted]
JAPAN & MALAYSIA (4)
Japan Malaysia
Largely monolingual but English widely, if passively, studied as foreign language.
Most educated people bilingual or trilingual.
Strong societal tendency to translate. Strong societal tendency to code-switch.
Rising numbers of foreign residents & workers: especially South Americans, Chinese, Koreans, Filipinos, Thais.
Rising numbers of foreign residents & workers: especially Bengalis, Burmese, Chinese, Filipinos, Indonesians, Thais.
Civil-law system heavily influenced by French & German law, some common law traits.
Common law system, originally in English but increasingly in Malay. Syariah & customary law.
All laws in Japanese, but some official or semi-official English translations.
All post-1966 laws drafted in Malay & English.Court cases may be in either language – or both.
Judicial interpreting focused on foreigners & often uses English as relay language.
Well-established (if overtaxed )system of judicial interpreting for West Malaysian languages but less developed for other languages.
2. GLOBALISATION OF LAW & IMPLICATIONS FOR
LANGUAGE & CULTURAL AWARENESS (5)
Close relationship between economic and legal expansion
-e.g. international law & cross-border security and commercial agreements-e.g. international litigation and arbitration-but based on government-level agreements & hard to enforce unless incorporated into national law
e.g. racial discrimination laws in Japan, arbitration law in Malaysia
Vagueness of concept of global communities -conference such as this has interest in positive connotations of global community
-also, of linguistic and cultural awareness as facilitators rather than barriers
-but ‘community’ more abstract, associated with common interests (contrast ‘neighbourhood’ ) Formidable barriers to cross-cultural communication in legal domain -world consists largely of nation-based legal systems
-but more people from other nations with other languages coming into contact with law
-estimated over 10% of defendants in Japan, and 15% in Malaysia, are foreign nationals
-but unclear whether more likely to be involved in crime (especially if remove immigration violations)
-language deficiencies, lack of knowledge of legal and non-legal culture -more likely to be incarcerated but less likely to have visitors
More foreigners in legal system a natural effect of globalised communities? -or evidence of communities breaking down?
2b. Impact of globalisation on societal and individual language needs(6)
Close relationship between expansion of economy & law and expansion of English -but mainly government & business domains -at workforce level other languages may be more important e.g. tourism: Chinese and Korean in Japan, Chinese and Arabic in
Malaysia e.g. labour: Portuguese, Spanish, Chinese, Korean, Thai, Tagalog in
Japan, Chinese, Burmese, Bangla in Malaysia -c/f 2-tiers of Burmese workers in Bukit Bintang In Malaysian law, good support for Malay, English, some Indian,
some Chinese languages, but less so for Bangla, Burmese, Tagalog In Japanese law, emphasis has been on English
2c. Linguistic barriers to justice (7)
Any profession, administrative practice, heavily dependant on language
e.g. engineering, mathematics, science
But few areas where the consequences of linguistic inaccuracy/ misunderstanding as crucial as law
- some non-linguistic aspects but works largely through interpreting laws and presenting arguments
Even process of changing wording within a single language complex
- e.g. mixed success of Plain English Movement ; Plain English Campaign
Translating from one legal language to another even riskier
Several bilingual legal systems around the world
-but most separate languages, and nearly all make one language authoritative in any given case
In Japan, civil law system mostly document-based
-defendants therefore may not be party to much of discussion
In Malaysia, common law system involves complex and sometimes antiquated technical language
Myth of legal language as context-free (8)
Kawashima Takeyoshi (1977) described Japanese law as burdened by relativity of its lexis in comparison with western languages which “give each word a definite meaning.”
-but no language and no legal system succeeds in freezing words into context-free mode -necessary attempts to do so result in lay-unfriendly text :
Malaysian Law Reform Marriage and Divorce Act (1979) s.34
Nothing in this Act or the rules made thereunder shall be construed to render valid or invalid any marriage which otherwise is invalid or valid merely by reason of its having been or not having been registered.
2d. Cultural barriers to justice (9)
Law has evolved principally along national lines -international law consists mostly of agreements between
governments -difficult to enforce unless incorporated into domestic law -huge surprise in Japan at result of Bortz v Suzuki 1999 (based on 1995 ratification of
ICERD)
People with different cultural backgrounds may have different ideas about what is legal
More crucially, may have different ideas about legal procedures Differences between legal cultures compounded by differences
in social cultures in which law situated
3. HISTORICAL & SOCIOLINGUISTIC CONTEXT OF JAPANESE & MALAYSIAN LAW (10)
3a. Historical context of Japanese legal system (11)
Roppou (六法 : 憲法、民法、商法、民事訴訟、刑法、刑事訴訟 ) -largely drafted in Meiji period (1867-1912) -strong influence of French & German law (e.g. Criminal Procedure 1890, 1922) -overlaid on existing traditions (some from China) -modified many times, above all under Allied Occupation -introduction of some common law features -trusts; end to investigating judges; equality between Pros & Def; case
law -but many existing features left intact -no pleas or plea-bargaining, no jury, Def not a witness Customs -recognised eg in Commercial Code, Directions for Conduct of Judicial
Affairs -can use deduction from natural reason ( 条理 ) where law silent
Cases – especially in civil and commercial matters; but not binding or authoritative
Administrative Guidance ( 行政指導 ) - extralegal, offering semblance of consensus
3b. Sociolinguistic context of Japanese legal system (12)
Japan never as monolingual as commonly claimed, but Tokyo dialect dominant
-almost no role for Kansai dialect, Ryukugo, Ainu, Korean, in state education
-English and Japanese drafts of constitution worked out simultaneously
- often wrongly thought English had precedence: - input from Japanese liberal traditions final wording left to
Diet
All non-Japanese evidence must be translated for courts裁判所では、日本語を用いる ( 裁判所法 第74 条 ) In the court, the Japanese language shall be used. (Courts Law, Art. 74)
3c. Historical context of Malaysian legal system (13)
Common law added to Syariah and to Malay/Sarawak/Sabah (penghulu) and some Chinese & Indian Customary Law.
- history of non-Muslims seeking remedy through Syariah - tradition of multiculturalism & custom carried into Federal Constitution
(e.g. Art 60) -nevertheless by late 19th century, English-based law hegemonic in all but
family matters. 1956 Civil Ordinance Law -formally incorporated common law of England, rules of equity -as at Dec, 1949 (Sarawak), Dec, 1951 (Sabah), Apr 1956 (West
Malaysia) -only local decisions have direct authority after these dates -but post-1956 English precedents have persuasive authority -may be binding if deemed to apply to local circumstances (Civil Law
Act, 1956, s.3).
3d. Sociolinguistic context of Malaysian legal system (14)
Bilingual legal system situated within multilingual society Post-1966 legislation drafted bilingually Both languages admitted by courts without translation Malay dominating oral discourse, especially in lower courts English used more widely in higher courts, civil & commercial
cases -strong influence on Malay legal lexicon
• Malay in turn influencing legal English lexicon: Certificate of Takaful; rotan
As English:Orthographic adaptation:Phonological adaptation:Morphological adaptation:Calques:
Antitrust, Bailor Akses, Kodisil Autoriti, Beligeren Yang digarnis, memfraud Pisah dan umpuk; Pekongsi lelap
3e. Language alternation in Malaysian courts(15)
Style-switching: C (to clerk): This one lah. C (to J): I humbly request for a short break, Yang Arif.
J: Short one is it ah? Code-mixing: C: Minta deterrent sentence. Mangsa seorang yang kurang 16 tahun. Code-switching : C: Umur dia masih muda. Give him a chance for the future. Interlocutor-related code-shifting: J [to C]. Then ask him. You see, it is as simple as that.
J [to W]: Nombor enam telah ditulis menjadi nombor kosong? W: Tak pasti, Yang Arif
(Powell, 2008)
3f. Arguments for and against bilingualism in legal systems (16)
Increases ambiguity? The Queen v Tam Yuk-ha (1996)/Tam Yuk-ha vs HKSAR (1997) ‘addition’ vs ‘增建工程’
Undermines authority? Hernandez v New York (1991) Requires proficient bilingualism in legal profession. “Saya akan apply for kos.” “Saya taruh sama engkau, engkau terbaring.” (The Star 1981, in Mead,
1988)
Constant need for bilingual drafting may expose ambiguities that might remain hidden.
Opportunities for greater transparency: ‘Charge’ > Caj, Pertuduhan, Tanggungan, Gadaian
Solution for societies where legal administration depends on second or minor language.
What about multilingualism? Rare. In trilingual systems (e.g. Sri Lanka,
Switzerland) languages usually kept separate rather than mixed in same courtroom. But…
Multilingualism in an Indian case (17)
It appears that here was a quarrel about rent or something between an Iranian student and his landlord, a Tamilian settled in
Allahabad. The former filed a writ petition in Persian. A the preliminary sessions the judge suggested that it would be convenient for all concerned if the documents were submitted in either English or Hindi. The foreign student submitted that since he could express himself best in Persian, he would feel more confident about the course of justice if his plea in that language was accepted.
The Iranian said he would have only one witness, a Sri Lankan friend, also a temporary resident in India. At the next hearing that witness submitted an affidavit in Sinhala to affirm what he knew about the facts of the complainant’s grievances. It was apprehended that this might spark off a political controversy, but mercifully such fears were set at rest when the landlord cited a Christian priest as his sole witness. The judge scratched his head discreetly under the wig when this man of God contended that since all his religious training had been in Latin, his affidavit would also have to be in that language. He also cited the fact that the English used in the Indian Penal Code, as also in all books on jurisdiction, was half Latin in any case.
When the case came up next, the judge asked for copies of Sinhala-English, Latin-Hindi, Tamil-Persian and Sinhala-Tamil dictionaries to be placed before the court within a fortnight. Both counsels asked for three months time, which was granted. At the end of that period, and not without great difficulty, the four tomes were produced, and were marked Exhibits 1,2,3 and 4 respectively. It was expected that the proceedings would hereafter proceed smoothly, but a new complication was introduced when the Iranian student made another plea to the court, this time begging permission to engage another lawyer (to assist senior counsel), and to allow him to address the court in Arabic which, he said, formed a regular course of studies in most Indian universities, and was therefore a recognized language. Not to be out-maneuvred, the Tamil landlord made a similar request for hiring junior counsel to argue his side of the case, adding that the man would do so in Sindhi. He pointed out that this too was an approved language, as was evident from the fact that Akashvani broadcast daily programs in that language. Both the requests were granted. If sources close to the judge are to be believed, by then he had begun to enjoy it all.
No newspaper reported this, but on the day the judgement was to be delivered, the court was full of orientalists from all over the country, and many from abroad too. There was a hush when the judge entered, took his seat, looked around him and said cryptically that he wished someone from Varanasi had also been present. He then proceeded to read out his 37-page judgement in Sanskrit. (Luthra, 1985)
4. PROVISIONS FOR ELIMINATING LANGUAGE-BASED DISADVANTAGE (18)
4a. Universal Declaration of Linguistic Rights (1996) Art 20 (“Barcelona Declaration”)
…everyone has the right to be tried in a language which (s)he understands and can speak, and to obtain the service of an interpreter free of charge.
4b. Language policy in Japanese courts (19)
刑事訴訟法第 13 章 (Code of Criminal Procedure s.13)
第 175 条 国語に通じない者に陳述をさせる場合には、通訳人に通訳をさせなければならない
When the court has a person who is not proficient in the nationallanguage make a statement, it shall have an interpreter interpret it.
第 176 条 耳の聞えない者又は口のきけない者に陳述をさせる場合には、通訳人に通訳をさせることができる
When the court has a person who is unable to hear or speak make astatement, it may have an interpreter interpret it.
第 177 条 国語でない文字又は符号は、これを翻訳させることができる
The court may have letters or marks written in languages other thanthe national language translated.
4c. Provisions for eliminating language-based disadvantage in Japan (20)
民事訴訟法 第 154 条 (Code of Civil Procedure Art 154) If a person who participates in oral argument is unable to
communicatein Japanese, or unable to hear or speak, an interpreter shall attend the oralargument; provided, however, that in the case of a person who is unable tohear or speak, it shall be permissible to ask questions of him/her or have him/her make statements by means of writing.
(s.4) Since interpreters at the court are not the court officials, they
are not provided with their salaries by the court, but with fees for translation and travel allowances when they claim those.
English Translation of Japanese Statutes Cabinet Office: htt
p://www.cas.go.jp/jp/seisaku/hourei/data2.html#ma
Nagoya University: http://www.inagaki.nuie.nagoya-u.ac.jp/told/
4d. Provisions for eliminating language-based disadvantage in Malaysia (21)
K. Nallah v R [1948] (MLJ 185) Retrial because of lack of Tamil interpreter
Fong Sium v PP [1950] (MLJ293) I am not aware of any exception to the general rule that an accused person
is entitled to have proceedings interpreted to him in any language which he desires to use. I think it doubtful whether he can be obliged to use even the language which is his native language if he does not want to…
Criminal Procedure Code -right to interpreter if involved in court appearance as accused or litigant
and not speak national language well enough (CPC 269, 270) -witness/defendant’s right to have proceedings explained in language of
choice (CPC270) -Ministry of Justice remunerates interpreters in criminal cases (RM500-700
p.d.) but rarely so in civil
5. CHALLENGES OF POLICE & COURTROOM INTERPRETING (22)
5a. Particularities of legal translation
Court interpreters are “not there to make sure the client
understands, but merely to give him the same chance anyone else in his place would have if he spoke the language of the court.”
(Mikkelson, 2000:2)
5b. On-the-job challenges of legal interpreting (23)
Semantic equivalence “Blood was flowing from him.” ( 血が流れていました。 ) [He had blood on him] “The Magistrate has found you guilty and will tie you up, and you cannot piss for six
months.” [I have found you guilty and I will bind you over to keep the peace for six months.] (Teo Say Eng, 1984 The role of interpreters in
Malaysian Courts)
Pragmatic equivalence e.g. level of politeness: - ‘respect’ forms in Japanese; pronouns in Malay - may impact perceptions of provocation; also education & character of witness - may alter illocutionary force of counsel or police questioning - interpreter likely to be female: in Japanese, significant gender-based differences e.g. tags: - Leung & Gibbons (2003) show how interpreter can transform illocutionary force
On-the-job challenges of legal interpreting (24)
Professional miscalculation “It would be better if you just told the police what you did and said sorry.” (London Metropolitan Police registered Spanish interpreter,
1990)
“Did you steal it?” [How do you plead, guilty or not guilty?] (Ga interpreter, Accra Magistrates Court, Ghana, 2007)
Emotional involvement Interpreter sometimes perceived by defendant as ‘ally’, impinging upon duty to
court. “When counsel starts shouting, sometimes we can’t help shouting too!” (Chinese Interpreter, Kompleks Mahkamah KL, 2009) Interpreter (interpreting): “I was raped at my workplace.” Judge: “Oh, you were raped too, were you?” (Malay Interpreter, Kompleks Mahkamah KL, 2009)
5c. Need for more analysis of & support for legal interpreting profession: Japan
(25)
no formal certification: those applying for registration given vocab-based written test
little advice about proceedings –advice concentrates on how to interpret testimony
emphasis on consecutive rather than simultaneous interpreting
several interpreting courses around Japan, some offering section on judicial interpreting
- but most based on English: rarely the L1 of defendants, but often used in relay interpreting
5d. Need for more analysis of & support for legal interpreting profession:
Malaysia (26)
drawn from PSD entrants who have no specific intention of joining judicial service
find themselves interpreting in court from first day of service
proficiency test within three years, but consists primarily of an oral interview
long hours of concentrated interpreting followed by other duties
extensive duties beyond interpreting for court-based officials -calling cases, reading charges, marking exhibits, reporting on or even recording proceedings;
miscellaneous ‘clerical’ duties
court-based interpreters well-established, but inadequate support for external interpreters -in increased demand, especially Bangla, Tagalog, Burmese, sometimes Indonesian -no training manual for external interpreters -some work virtually as volunteers but may be involved for many months
5e. A Tale of Two Cities/Interpreters (27)
KD (Tokyo) Bhutanese businessman fluent in Dzongka and English, but limited Japanese; no experience of interpreting contacted via Bhutanese support network about Bhutanese arrested for visa violation asked to interpret between Dzongka and English in immigration hearing, could not understand
Japanese which this was retranslated into KKH (Kuala Lumpur) Malay studies graduate from Korea, working as lecturer but some experience of business
interpreting approached by Korean Embassy in KL who had been contacted by Ministry of Justice asked to work as volunteer until fulltime interpreter found, but in the end involved for one year given basic details of case (fraud) by embassy and a week to brush up on legal Malay &
Malaysian law no Malay-Korean references so had to go through English met defendant for 1st time in court; briefly shown his written statements asked not only to interpret defendant’s replies for court but proceedings for him often had to ask judge or counsel for help, but all very supportive and allowed her to go slowly latter much the more difficult; translating questions to and replies from witness mostly non-
technical
5f. Initiatives to improve interpreting standards in Japan (28)
six-monthly training sessions now sponsored by courts one of the mock trials for new lay judge system involved interpreters Handbooks by General Secretariat of Supreme Court of Justice extension of interpreting to all parts of proceedings Japan Judicial Interpreters Association ( 司法通訳人協会 ) (founded 1993) -training sessions for terminology, procedure, ethics; -annual journal to encourage awareness of interpreting
among all law- related personnel
Judiciary Interpreting and Translation courses at Osaka University of Foreign Languages since 1997
-difficult to get transcripts of proceedings, so mock trials organised -lectures by judges; court observations -medical interpreting
5g. Initiatives to improve interpreting standards
in Malaysia (29)
one-week intensive courses at ILKAP (Institut Latihan Kehakiman dan Perundangan)
-but shortage of interpreters means difficult to get leave to attend
occasional training courses at ITNM (Institut Terjemahan Negara Malaysia)
symposia at UM 2002, 2004 -but currently not running Dip. or Cert. Translation
courses no automatic right to transcripts for non-interested parties -but courts often make transcripts of ‘high profile’ trials
available to press
6. CULTURAL BARRIERS TO JUSTICE (30)
6a. Legal domain as a site of cultural conflict
Legal disputes representing a breakdown in communication?
Differences in legal culture and also wider culture
Law seen in Japan as too technical for lay participation
Common law in Malaysia sometimes viewed as cultural imposition
6b. Differences in criminalisation (31)
Flushing toilets, using gum, laughing at policemen
Narcotics – magic mushrooms in Japan – marijuana in EuropeSexuality – homosexuality, sodomy, cross-
dressingFamily law – punishment/marriage/voting/Treatment of animalsIT, copyright, libel
6c. Differences in enforcement (32)
Differences between jurisdictions: e.g. white stop lines -ignored with impunity by motorcylists in Malaysia; but going
5cm over the line can lead to police intervention in Indonesia
Differences between transgressors: e.g. parking tickets -case of US resident of Japan who was initially fined, then
reimbursed because his international licence was out of date so fine could not
be processed without causing great embarrassment to police
6d. Differences in legal procedure (33)
Adversarial vs inquisitorial systems -significant impact on powers of police and prosecutors, role of
oral testimony
Rights to silence -curtailed in UK: defendant’s silence can be commented on by prosecution
Attitudes to defendant testimony -Japanese defendants do not risk perjury if lie
Use of police / prosecution investigation vs use of court trial
Prosecution’s capacity to appeal against acquittal
6e. Differences in cultural behavior & expectations (34)
Interpreter needs awareness of cultural differences - but also of how and when to intervene -must be neutral but cannot be a mere ‘conduit’ or kuroko 黒子 Body language? - eye contact - looking at floor – a sign of repentance? - smiling & laughing Pragmatics? - use of negative questions, Yes/No questions - prosidy, tags, pauses, hesitations - overly polite or friendly translation may make suspects too relaxed e.g. Sydney Case
Differences in cultural behavior & expectations (35)
Repentance 反省 (‘regret’, ‘self-examnination’) extremely important in Japanese society e.g. Japanese travel agents warn clients not to say sorry if involved in car accident -also vital in Japanese law given that vast majority of cases proceeding to trial will have
guilty verdict so main aim of defence counsel to get suspended sentence J: 最後に何か言う事は？ [Finally, do you have anything you would like to say?] D: Nothing. (Mizuno, 2004)
US defendant refusing to apologise to accident victim because claimed not his fault.
UK drug-trafficking suspect refusing to apologise for ‘trouble’ caused because maintaining innocence
Differences in cultural behavior & expectations (36)
Provocation may affect sentencing, even verdict culturally-neutral concept of ‘reasonable man’ honour killings botched joint suicides Threatening behaviour waving a cooking knife swear words -Japanese interpreter’s account of embarrassment at translating
them exactly -but softening them likely to lead to misinterpretation
どうする？ Apa boleh buat? (37)
Apparently so different, Japan and Malaysia face many similar issues when it comes to increasing involvement of foreigners in legal system.
Interpreters by and large do a magnificent job under difficult conditions and deserve better support and training.
Without actually commenting, interpreters need to incorporate cultural awareness into translation so court not misled.
Vital that other legal personnel, including police, also have some cultural training.
Bending over backwards to be fair to foreigners may cause resentment among local citizens who also suffer abuses or who are frightened by crime-waves perceived as caused by ‘outsiders’, especially where resources are in short supply. But maxim that ‘Justice must be seen to be done’ is doubly relevant in cases involving foreigners.
Selected References
Kawashima Takeyoshi (1977) ‘Japanese Ways of Legal Thinking’, International Journal of Law Libraries, 127-131.
Leung, E. and J. Gibbons (2003) ‘Control in the Cantonese courtroom.’ 30th International Systemic Functional Linguistics Conference, 2003.12.15-17, Lucknow.
Luthra, H.R. (Indian Express 1985.12.16) in Charles M. Sevilla (1992) Disorder in the Court.
Mikkelson, Holly (2000) Introduction to court interpreting. Manchester: St Jerome.
Mizuno, M (2004) 「法廷通訳をめぐる異文化の問題 」 (‘Cultural issues surrounding court interpreting.’) SIETAR International Conference.
Powell, Richard (2008) Motivations for Language Choice in Malaysian Courtroom. Kuala Lumpur: Universiti Malaya Press.